For a government agency, the USPTO (PTO) is fairly transparent to non-parties hoping to learn about the patent system and about specific patent cases. The PTO website receives millions of visits to access patents, published patent applications documents, and prosecution history files. In promoting the new rule changes, the PTO also offered up a number of metrics to prove its case. While that information was useful, its reliability was generally impossible to independently verify because the underlying data was not publicly available. The truth is that the PTO still has a long way to go before we can consider it a transparent operation.
Why this is important: Part of the need for more information involves public accountability so that we can ensure that the PTO is efficiently and accurately carrying out its role in the patent system. Independent verification is especially important now when various factions (including the PTO's own lobbying arms) are calling for various reforms of patent laws and the rules of patent procedure. However, the call for transparency at the PTO is at least equally focused on the business need of understanding how the patent system works and how competitors are using the patent system.
I have created a short list of "easy" suggestions for improving transparency at the Patent Office. I call it an easy list, because these steps really just involve taking information that is already at the fingertips of PTO insiders and making the information accessible to those on the outside. Following these steps may be a quick and easy way for career office officials to quickly win favor with the new Obama administration.
- Make petitions decisions available. Challenges to certain decisions by patent examiners and PTO officers go through a petition process to the Commissioner of Patents rather than through the Board of Patent Appeals and Interferences (BPAI). These cases include disputes involving revival, patent term extension, patent term adjustment, patent term restoration, reexamination petitions, petitions involving filing dates, petitions involving disclaimer of scope, refund petitions. Since January 1, 2005, the PTO has not posted any petitions decisions to its website. Thus - unless a party knows the specific case number and obtains it through the Image File Wrapper in the Patent Application Information Retrieval (PAIR) system - the petitions are inaccessible. Conventional wisdom is that petitions practice can be something of a black hole -- unless the PTO decides to act quickly. This is only conventional wisdom, because the actual practice of the office is hidden. It would be an easy change to start publishing all petitions decisions as they are released in once convenient location on the PTO website.
- Make public PAIR information available for automated download -- either through the PTO website or through a third party willing to make the information publicly available. The PAIR system is amazing in the information that it provides. However, it is clunky and wastes a tremendous amount of time to access each individual case. File history information is important because claim construction decisions now rely on that information in interpreting the claims. In addition, file histories are an important source of prior art - especially in the way that the documents can provide contextual information on how different elements may fit together. Yet, PAIR is not generally searchable and data cannot be obtained in any bulk way. This must change. I will be more than willing to work with PTO to and others to create a system that works. Although I am not wedded to this approach, I would favor a system that embraces the possibility that individuals and companies will take-hold of the data stream and use it in creative ways.
- Publish the standard metrics used by PTO executives to measure the process flow and quality. Of course, this should be done in a way that maintains some semblance of privacy for PTO employees, but I doubt that the executive-level charts include specific names of the 6,000 examiners. Of course, I don't know because these items are not publicly available.
- Allow search engines to crawl through the PTO web-servers. Matt Buchanan wrote an interesting post on President Obama's new ROBOT.TXT file for the whitehouse.gov website. [LINK] Obama has apparently opened the site to allow it to be crawled by any search engine. The PTO should follow suit so that documents posted to the website can be found through Google, Yahoo, CURL, Alexa, etc. Remember, the touchstone of publication is whether it is accessible to the public. Many documents on the USPTO.gov website are worthless because they are too difficult to find through the locked-down search procedures available on the current website. This is an extremely easy change. It took the White House a few minutes to make the change, the PTO could be done in the same way. Kudos to the PTO -- After I wrote a first post on this issue, two PTO officials contacted me to indicate that they were working on resolving the issue.
- Use PDF format to allow download of patents and patent applications in their "Standard" form. This would be a bonus, but it is not required since there are low coast ways to obtain this result through an outside vendor. One problem with using an outside source, however, is the possibility that search information may be stored and used against the searcher at some point.
- Openly respond and post all responses to freedom of information act (FOIA) requests on the PTO website. The PTO has created a FOIA website that is hardly searchable. And, most FOIA documents are not placed on the FOIA website. Any response to a FOIA request should be automatically and immediately uploaded to the FOIA website so that it is accessible to the public at large rather than to only the one person who requested the information. As a teacher, I have learned that if one person asks a question, it is likely that other folks had the same question. In most cases, the PTO could upload the documents and save mailing costs by simply providing a link. President Obama has ordered all executive agencies to "adopt a presumption in favor" of FOIA requests, and this change would fall in line with the spirit of that request.
I have eliminated other potential projects and changes that might be considered "hard" for the PTO to complete. These are easy and should be done. This is a draft of ideas -- add yours below. Also, please let me know if there is already a good way to access the information that I discussed above.